* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable John W. Lungstrum, District Judge, UnitedStates District Court for the District of Kansas, sitting by designation.

UNITED STATES COURT OF APPEALS Filed 12/5/96 FOR THE TENTH CIRCUIT

JERRY D. RYAN, MARCELLA M. RYAN, Individually and as Parent and Next Friend of DAVID C. RYAN, DANIEL J. RYAN,

Plaintiffs-Appellants,

v. GENERAL TIRE, INC., an Ohio corporation, Defendant-Appellee. No. 96-2052 (D.C. No. CIV 94-1204 JP/LFG)

(D.N.M.)

ORDER AND JUDGMENT *

Before BALDOCK and BRISCOE, Circuit Judges, and LUN GSTRUM, ** District Judge.-2-

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiffs appeal from a jury verdict against them on their product liability claims against defendant. Plaintiffs contend that the district court erred in excluding certain evidence they wanted to introduce . We have jurisdiction under 28 U.S.C. § 1291. We review a district court's exc lusion of evidence for an abuse of discretion. Cartier v. Jackson , 59 F.3d 1046, 1048 (10th Cir. 1995). “In reviewing a court's determination for abuse of disc retion, we will not disturb the determination absent a distinct showing it was base d on a clearly erroneous finding of fact or an erroneous conclusion of law o r manifests a clear error of judgment. In doing so, we give deference to the di strict court's evidentiary rulings.” Id. (citations omitted). Plaintiffs’ claims arise from an automobile acciden t caused by the failure of a tire manufactured by defendant. The tire failed as a result of a separation of the top steel belt and tread from the inner belt and re mainder of the tire. Plaintiffs claim that the separation was caused by the defecti ve manufacture of the tire. Defendant contends that the tire was not defectivel y manufactured and that the separation was caused by misalignment of the vehicl e and improper maintenance.-3-

Plaintiffs first contend that the district court er red by excluding what are referred to as the “Big O documents.” These are ti re adjustment claim forms reflecting problems which customers of Big O Tires, Inc., had with tires manufactured by defendant and sold by Big O under i ts own brand name. The documents reflected 168 failures by separation of p assenger tires manufactured by defendant for Big O in 1990, which is the year the tire at issue was manufactured. The Big O tires were manufactured at the same plantat which the subject tire was manufactured, but were not the same design and cons truction as the subject tire. Most of the documents note only that there was a se paration without explaining what type of separation. Some documents indicate t here was a tread separation, while others refer to sidewall separations, sidewal l cracking and other problems. The documents do not indicate the mileage of the ti res at the time of the problem, the maintenance history of the tires, the type of v ehicles on which they were mounted, the identity of the person preparing the d ocument, or the reason for the problem. Defendants moved to exclude the Big O documents on the basis they were inadmissible hearsay and irrelevant. Plaintiffs co ntended that they were admissible under the hearsay exception for business records, Fed. R. Evid. 803(6), and submitted the deposition testimony of a Big O r ecords custodian in support of this position. Plaintiffs also argued that the man ufacturing process for the Big O-4-

tires was substantially similar to the one used forthe subject tire, making reports of separations of Big O tires relevant. In addressing the admissibility of these documents, the court first noted that you gave me some samples of those exhibits at the l ast meeting we had. And I haven’t the faintest idea, looking at t hose records, who may have prepared them, whether the person who prep ared them had any expertise at all, had any knowledge about separ ation. . . . But looking at some of these exhibits, it just says , “Separation.” Well, as I--what little I know alrea dy about this case, I gather that a separation can be caused from a whole variety of factors aside from improper manufacturing. So if we let these in, number one, are they really reliable? Can the jury rely on them? Appellants’ App. Vol. I at 109-10. The court then concluded that plaintiffs had not laid an adequate foundation for the documents’ admission under the business records exception:

[The records custodian] testified that she had phys ical custody of certain of Big O adjustment documents, but she c ould not testify how those documents were completed, who completed them, when they were completed, what they contain, under what circumstances they were produced, or what they were intended to b e used for. She similarly was unaware of any policy of Big O concerning how such reports were made or any policy of retaining or usi ng such records. Id. at 124. The court also stated that even assuming an adequate foundation could be laid for the documents, there was inadequate evi dence to support plaintiffs’ claim that the manufacturing process for the Big O tires was substantially similar to the one for the tire at issue.1 Plaintiffs also contend that the court erred in notallowing them additional

time to pursue discovery of evidence to establish t he necessary foundation for admission of the documents. We do not see anything in the record supporting their contention that they requested more discoverytime or that the court denied their request. In fact, when the court asked wheth er plaintiffs were satisfied that they had produced sufficient evidence for the courtto rule on the admissibility of the documents, plaintiffs’ counsel replied that the y had. Appellants’ App. Vol. I at 112-13. -5- On appeal, plaintiffs contend that the record custo dian’s general testimony should have been sufficient to satisfy the foundati on requirement for the business records exception. Additionally, plaintiffs admit that there was conflicting evidence as to whether the manufacturing processes for the two types of tires were substantially similar, but contend that this g oes only to the weight of the evidence and not its admissibility. We have review ed the documents in question and the other relevant evidence in the record, and we well understand the district court’s concerns about the trustworthiness and mean ing of the Big O documents and the lack of similarity in manufacturing process es. The court was concerned that admission of the documents would lead to collateral arguments regarding the preparation and reliability of each of the Big O do cuments. We conclude that the court did not abuse its discretion in excluding the Big O documents. 1
Plaintiffs next contend that the court erred in ref using to allow their witness, Bill Brown, to testify why he had sued def endant. Mr. Brown was a department manager at defendant’s plant from 1988 t o 1993. After being-6-

terminated in 1994 (following a period of medical l eave), Mr. Brown filed suit against defendant alleging mental distress arising from his being forced to distort production figures at the plant. The court allowed Mr. Brown to “testify that his department was under a lot of pressure at the time the subject tire was manufactured in July, 1990.” Id. at 52. The court prohibited plaintiffs from eliciting during their case in chief Mr. Brown’s te stimony that he was forced to distort production figures, but stated that it migh t allow testimony on this topic on redirect depending on his cross-examination. Id. at 47-48. On cross-examination at trial, Mr. Brown testified regarding his suit against defendant. On redirect, he was allowed to state th at the reason for the suit was “discriminatory discharge,” but the court did not a llow him to further explain the basis for the suit, stating “[w]e don’t want to tryhis claim in this lawsuit.” Id. at 307-08. We note that in his deposition, Mr. Brown testified that his being forced to distort production figures occurred sometime aft er 1990. Appellants’ App. Vol. II at 363. Again, we see no abuse of the court’s discretion in excluding this testimony. Finally, plaintiffs contend that the district court ’s errors cumulatively constitute reversible error. "Cumulative error ana lysis evaluates the effect only of errors, not the cumulative effect of nonerrors." U nited States v. Cox , 83 F.3d 336, 342 (10th Cir. 1996). Moreover, we would be h ard-pressed at best to-7-

determine the effect of any error in this appeal be cause plaintiffs did not submit a complete copy of the trial transcript. See Allen v. Minnstar, Inc. , 97 F.3d 1365, 1372-73 (10th Cir. 1996). Plaintiffs’ motion to supplement the record on appe al is GRANTED. The judgment of the district court is AFFIRMED.

Entered for the Court

Bobby R. Baldock Circuit Judge